What happens if an applicant doesn’t challenge the examiner’s use of official notice?
What happens if an applicant doesn’t challenge the examiner’s use of official notice?
If an applicant does not challenge or traverse the examiner’s use of official notice, there are important consequences. According to MPEP 2144.03(C):
“If applicant does not traverse the examiner’s assertion of official notice or applicant’s traverse is not adequate, the examiner should clearly indicate in the next Office action that the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner’s assertion of official notice or that the traverse was inadequate.”
This means:
- The fact asserted by the examiner becomes admitted prior art
- The examiner can rely on this admitted prior art in subsequent rejections
- The applicant loses the opportunity to challenge the assertion later in prosecution
It’s crucial for applicants to carefully review and, if necessary, challenge any use of official notice to preserve their rights and ensure a thorough examination of their application.
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